Alberto Alemanno, Jean Monnet Professor of EU Law & Risk Regulation, HEC Paris
Laurent Pech, Jean Monnet Professor of EU Public Law, Middlesex University London
1. Setting the Stage
Recent media attention on the EU Court of Justice highlights a departure from its previous low profile. Surprisingly, this attention is not focused on a specific court decision but rather on internal disputes regarding a proposal to address the court’s efficiency. This proposal, put forth by the Court of Justice (CJ) President, Vassilios Skouris, suggests doubling the number of judges at the General Court (GC) to manage its escalating caseload.
Established in 1989, the GC, initially the EU’s Court of First Instance, aimed to alleviate the CJ’s mounting workload. In a similar vein, the EU Civil Service Tribunal (CST), a specialized judicial panel, was created in 2005. This tribunal, with seven judges, focuses solely on disputes between the EU and its civil servants. Currently, both the CJ and the GC have 28 judges, representing each Member State, while the CJ also benefits from nine Advocates-General.
2. The Court of Justice’s Perspective
The current debate concerning the EU’s judicial structure stems from the surge in new cases brought before the GC. This increase, coupled with a backlog of cases awaiting decisions and a rise in lawsuits against the EU due to lengthy proceedings, has raised concerns about the GC’s ability to handle its workload effectively.
While a rising caseload is not a novel issue for either the CJ or the GC, the latter’s declining productivity despite an increase in judges and legal assistants (référendaires) has amplified these concerns. However, recent reports from GC judges suggest that a significant portion of the backlog has been addressed, and the number of completed cases now surpasses new filings.
Adding to these challenges is the CST’s predicament. The Member States’ inability to fill two vacant judge positions due to disagreements on rotation procedures has further complicated matters.
3. The Proposed Solution
In 2011, the CJ initially rejected the idea of specialized courts, favoring the appointment of 12 additional GC judges. This solution, however, was dropped from reform proposals due to disagreements among Member States regarding appointment rotations.
Consequently, the CJ President proposed a phased doubling of GC judges, from 28 to 56. To counter the financial implications, the proposal also suggested abolishing the CST, with its judges transferring to the GC. This plan would involve an initial increase of 12 judges in 2015, followed by 7 more in 2016 after the CST’s dissolution, and a final addition of 9 judges in 2019.
This proposal, while surprising to some given the CST’s perceived success, would effectively result in 21 additional judges at an estimated cost of €13.875 million annually. Although this figure excludes the cost of a new building intended to house staff, the overall expense is considered modest compared to the financial implications of the cases handled by the GC. However, we argue that this solution, while seemingly practical from a cost perspective, falls short in terms of structure and long-term sustainability.
4. A Critical Analysis
Supporters of the CJ’s proposal cite its flexibility compared to specialized courts, arguing that it allows for unforeseen litigation increases and keeps relevant cases within the CJ’s purview. This approach, they contend, also facilitates consistency in handling similar cases referred from national courts. Additionally, they highlight the ease and speed of appointing judges to the GC, avoiding political complications that specialized courts might present. Finally, they view the CJ’s solution as a way to simplify the EU judicial system.
While these arguments have merit, they lack empirical support. The absence of a comprehensive impact assessment for the proposal is concerning. Furthermore, the top-down approach adopted by the CJ President raises concerns about a lack of meaningful discussion regarding alternative solutions, such as specialized courts for specific areas of law.
The proposal also represents a shift from specialization, previously endorsed by EU leadership, towards a generalist approach with two judges per Member State. The argument against specialization—that a court with a narrow focus might become obsolete as workloads evolve—could be applied to the proposed “super-GC,” whose future caseload might not justify its size.
Furthermore, the emphasis on doubling GC judges distracts from crucial issues such as case management and individual productivity. Addressing these aspects could lead to substantial improvements without requiring a complete overhaul of the judicial system.
Therefore, we propose a step back from this emotionally charged and often unsubstantiated debate to consider alternative diagnoses and reform strategies.
5. Exploring New Perspectives
While the prevailing narrative centers on a substantial backlog, the GC faces a wider set of challenges in its mission to effectively administer justice.
The GC grapples with the complexities inherent in being a unique transnational and multilingual court. Its jurisdiction has expanded alongside the EU, requiring it to adapt to a growing and evolving caseload. Unlike the CJ, which largely functions as a constitutional court, the GC operates as an administrative court tasked with fact-finding. This distinction, often overlooked, necessitates different operational procedures and linguistic frameworks for the two courts.
For instance, in both courts, a Reporting Judge (JR) leads the case preparation. However, the time required for this preparation differs significantly. At the CJ, it takes approximately two weeks, while at the GC, it can take a minimum of 12 weeks. This discrepancy stems from the comprehensive nature of the preparatory document (rapport préalable) prepared by the JR at the GC, which essentially anticipates the judgment draft.
This difference highlights contrasting approaches between the two courts. The CJ emphasizes collegiality, with members regularly discussing new cases. In contrast, the GC relies heavily on individual chambers and the JR. Without an Advocate General, the JR and their référendaire work in relative isolation for extended periods. This situation, exacerbated by the numerous chambers, can lead to wasted time if other chamber members disagree with the JR’s approach.
Addressing this disparity, for example, by implementing a preliminary document outlining the chamber’s stance before the JR begins drafting, could lead to significant improvements. This is just one example of how creative and cost-effective solutions can address the GC’s workload concerns.
Other potential reforms include revising language arrangements (e.g., using English as the procedural language in competition cases), introducing court fees to deter frivolous lawsuits, implementing stricter rules on legal cost allocation, and revisiting the automatic right to appeal to potentially discourage unnecessary litigation.
Regarding the judges themselves, we believe that quality should be prioritized alongside quantity. Currently, the focus on reducing case backlog has led to a system where a judge’s success is measured solely by the number of cases closed annually. This approach, reliant on internal pressure tactics, has not yielded the desired results.
Greater transparency regarding judges’ productivity and performance, coupled with a more nuanced evaluation process that considers both quantitative and qualitative factors, could prove more effective. This would foster accountability and potentially lead to a more holistic approach to judicial selection.
To further enhance the selection process, a more “Europeanized” approach is recommended. Member States should be mandated to conduct public calls for applications and propose a diverse list of at least three candidates for each judicial position, taking into account gender balance, management skills, and professional background. A specialized judicial panel, as stipulated by Article 255 TFEU, would then select the most suitable candidate based on the court’s specific needs, promoting diversity and preventing any single national entity from dominating judicial appointments. Additionally, implementing a single, non-renewable term of nine years for EU judges and prohibiting transfers between courts during their tenure could ensure greater stability and prevent disruptions.
Equally important is the recruitment and oversight of support staff, particularly the référendaires (legal secretaries). Modernizing the current recruitment practices, such as introducing a standardized civil service exam, implementing updated entry requirements, and creating a pool of qualified candidates from which judges can select their legal teams, could significantly improve both the quality and efficiency of the court. These legal assistants should be accountable to the court rather than individual judges, fostering stability and professionalism. Additionally, implementing basic employment protections and internal whistleblowing mechanisms would align the court with modern workplace standards.
Finally, establishing a centralized pool of highly specialized legal secretaries could provide additional support for judges and their teams handling complex and time-consuming cases. These experts could be “seconded” to relevant teams as needed, drawing on the success of similar initiatives implemented by the GC in the past.
6. A Vision Beyond Workload
Contrary to popular belief, the most pressing issue facing the Court is not the quantity of cases but the quality of its operations. We believe that the proposal to double the GC judges is an inadequate response to a past problem. Instead, we advocate for a more comprehensive and evidence-based approach that addresses the systemic challenges within the CJEU.
The current debate should center on how to ensure the CJEU remains a respected and influential institution capable of delivering clear, timely, and well-reasoned judgments in a complex multicultural, multilingual, and multi-legal environment.
As in many areas of life, the human element plays a crucial role. We believe that the CJEU’s success hinges on understanding and addressing the human factors within the judicial system. Implementing a more effective system of incentives, utilizing behavioral insights (such as peer pressure), and promoting greater transparency would be far more impactful than simply adding more judges.
These reforms would enhance accountability, bolstering the Court’s legitimacy and authority during a critical time for the European project.